Australian Immigration Daily News

Here’s an unusual case that just showed up recently on Austlii: Guder v Minister for Immigration & Anor (2017) FCCA 2527 (7 November 2017)

I’m wondering whether you would agree with the way that the Federal Circuit Court interpreted the relevant legislative instrument, pertaining to the time frame within which an English language proficiency test must be taken by an applicant for a 457 visa. 

The legislative instrument of concern in this case was IMMI 15/028, which is no longer in force. 

Crazy, wacky stuff happens in life all the time, doesn’t it? 

Is there any reason that the arena of migration decision-making should be any different? 

A case that was handed down last week by the Federal Circuit Court – Kaur v Minister for Immigration & Anor (2016) FCCA 1730 (20 July 2016) shows us that it’s not!! 

What is the proper test for assessing an application for approval of a nominated position under the Regional Sponsored Migration scheme? 

This question came before the Federal Circuit Court in a case that was decided on 29 April 2016, Bharaj Construction Pty Ltd v Minister for Immigration & Anor (2016) 902. 

Although this case addressed a version of Regulation 5.19 that is no longer in force, it may still have relevance to ongoing cases – namely, matters where the nomination was made under the same regulation and is the subject of a review before the Tribunal or the courts that has not yet been finalised, or nominations under the version of Regulation 5.19 that is now in force, and which require that the nominee will be employed on a full-time basis for a period of two years – namely the Temporary Residence Transition and Direct Entry Streams for Employer Nomination Scheme visas (subclass 186). 

Readers of this blog may be aware that in the weekly newsletter that our sister organization, the Migration Institute of Australia, released on 24 February, it reported that it was receiving a large number of complaints from RMAs that nominations of occupations for  457 visas are being refused on the basis that the position for which the sponsoring employer has nominated  is “not genuine”. 

It is therefore timely to review a recent decision of the Federal Court of Australia that dealt with the question of how the “genuineness” of a position is to be determined.  That case was Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) FCA 30 (3 February 2016). 

(I would like to note that our colleague at the Migration Alliance, Chris Levingston, acted for the sponsoring company in these proceedings at the Federal Circuit Court level, and thus presumably also before the Federal Court!) 

Is it possible to “get another bite at the apple?” 

Or, to phrase the question in a more “legalistic” way, and in terms of Australian migration law, is a visa applicant whose first skills assessment has been rejected on the grounds that it was based on false material or a bogus document, entitled to an adjournment from the AAT so that she/he can get a second skills assessment done? 

Suppose the AAT refuses to allow an adjournment?